Opinion
7 Div. 738.
June 10, 1943.
Appeal from Circuit Court, Etowah County; W. M. Rayburn, Judge.
Bill for divorce and custody of minor child by Frances Cox Nelson against Morris L. Nelson. From a decree overruling a demurrer to the bill, respondent appeals.
Affirmed.
The bill, in so far as here pertinent, is as follows:
"2. Your complainant and respondent were married in Etowah County, Alabama, on to-wit: April 30, 1937, and lived together as husband and wife until to-wit: September 4th, 1937, at which time a separation occurred and the parties hereto have lived separate and apart from each other since the last named date.
"3. The complainant further avers that on to-wit: September 4th, 1939, the respondent voluntarily abandoned the complainant and said abandonment has continued for more than two years next preceding the filing of this suit."
McCord McCord, of Gadsden, for appellant.
The bill does not allege that respondent voluntarily abandoned the bed and board of complainant, and the averments are not sufficient to charge voluntary abandonment from bed and board. It does not allege abandonment in the broad terms of the statute. Perry v. Perry, 230 Ala. 502, 162 So. 101; Code 1940, Tit. 34, § 20(3).
Hood, Inzer, Martin Suttle, of Gadsden, for appellee.
The averments of the bill are sufficient to charge abandonment as a ground for divorce under the statute. Gray v. Gray, 15 Ala. 779; Stephenson v. Stephenson, 213 Ala. 382, 105 So. 183; Code 1940, Tit. 34, § 20(3). The case of Perry v. Perry, 230 Ala. 502, 162 So. 101, cited by appellant is inapt. The demurrer is on the general ground, and is directed only to defects in substance. Whiteman v. Taber, 203 Ala. 496, 83 So. 595; Wood v. Burns, 222 Ala. 650, 133 So. 696; Dothan Oil Mill Co. v. Espy, 220 Ala. 605, 127 So. 178; Johnson v. Pugh, 239 Ala. 12, 193 So. 317; Badham v. Johnston, 239 Ala. 48, 193 So. 420.
The bill is by the wife against the husband seeking divorce on the ground of voluntary abandonment. Section 20 (3) and Section 27, Title 34, Code of 1940. The appeal is from a decree overruling demurrer to the bill. The only ground of demurrer here insisted upon is the general one that there is no equity in the bill. The insistence is without merit.
While it is true, as observed in Perry v. Perry, 230 Ala. 502, 162 So. 101, that to constitute voluntary abandonment within the meaning of the statute, "there must be a final departure, without the consent of the other party, without sufficient reason therefor, and without the intention to return", yet all these facts need not be set out in the bill. Stephenson v. Stephenson, 213 Ala. 382, 105 So. 183. Nicety of pleading in cases of this character is not required (Ratcliff v. Ratcliff, 209 Ala. 377, 96 So. 422), and in bills seeking divorce upon this ground the broad language of the statute should suffice. Stephenson v. Stephenson, supra; Benton v. Benton, 214 Ala. 321, 107 So. 827. In any event it is sufficient to give the bill equity, and that is the only question here presented.
The averments in the bill considered in Perry v. Perry, supra, differ widely from those here presented, and there were also specific grounds of demurrer interposed. Here there is only the general ground of demurrer. The Perry case lends no support to appellant's cause.
But further discussion is unnecessary. The decree is correct and is due to be affirmed. It is so ordered.
Affirmed.
BOULDIN, FOSTER, and LAWSON, JJ., concur.